NALCO HOLDING COMPANY AMENDED AND RESTATED 2004 STOCK INCENTIVE PLAN NONQUALIFIED STOCK OPTION AGREEMENT
Exhibit
99.2
NALCO
HOLDING COMPANY
AMENDED
AND RESTATED 2004 STOCK INCENTIVE PLAN
NONQUALIFIED
STOCK OPTION AGREEMENT
THIS
AGREEMENT, is made effective as of October 8, 2008 (the “Date of
Grant”), between Nalco Holding Company (the “Company”)
and Xxxx X. Xxxxx (“Xxxxx”).
R E C I T A L S:
WHEREAS,
the Company has adopted the Plan (as defined below), the terms of which are
hereby incorporated by reference and made a part of this Agreement;
and
WHEREAS,
the Committee has determined that it would be in the best interests of the
Company and its stockholders to grant the Options provided for herein to Xxxxx
pursuant to the Plan and the terms set forth herein;
NOW,
THEREFORE, in consideration of the mutual covenants hereinafter set forth, the
parties agree as follows:
1. Definitions. Whenever
the following terms are used in this Agreement, they shall have the meanings set
forth below. Capitalized terms not otherwise defined herein shall
have the same meanings as in the Plan.
(a) Just
Cause: “Just Cause” shall
mean: (i) your engaging in gross or willful misconduct (which
includes insubordination) in the performance of your duties or intentional
failure to comply with a specific, written directive of the CEO or the Board of
Directors, as reasonably determined by the Board of Directors of the Company;
(ii) the commission by you of a felony, perpetration of a fraud against the
Company, or dishonesty which, in the reasonable judgment of the Board of
Directors of the Company reflects adversely on the Company; (iii) your material
breach of your employment agreement as reasonably determined by the Company;
(iv) your material violation of the Company’s policies and procedures, including
the Company’s Code of Ethical Business Conduct or Officers Ethics Code; or (v)
the Executive’s failure to cooperate in any audit or investigation of the
Company’s financial statements or reports and filings with the Securities and
Exchange Commission, or the business practices of the Company or its direct or
indirect subsidiaries. A termination under (iii) or (iv) can occur
only after you fail to cure any violation or breach within fifteen (15) business
days, with such cure determined by the Board of Directors of the Company,
excluding any days you are on paid vacation, of your receipt of written notice
by the Board of Directors of the Company of the breach or
violation.
(b) Disability:
“Disability” shall mean long term disability as defined in the Company’s Long
Term Disability Plan.
(c) Expiration
Date: The tenth anniversary of the Date of Grant.
(d) Plan:
The Nalco Holding Company Amended and Restated 2004 Stock Incentive Plan, as
from time to time amended.
(e) Vested
Portion: At any time, the portion of an Option which has become vested,
as described in Section 3 of this Agreement.
2. Grant of
Options. The Company hereby grants to Xxxxx the right and
option to purchase (the “Option”),
on the terms and conditions hereinafter set forth, 126,968 shares of stock in
Nalco Holding Company, subject to adjustment as set forth in the
Plan. The exercise price shall be $14.32 per Share (the “Option
Price”). The Options are intended to be nonqualified stock
options, and are not intended to be treated as ISOs that comply with Section 422
of the Code.
3. Vesting of the
Options.
(a) Vesting of the
Option. Subject to Xxxxx’x continued Employment with the
Company and its Affiliates, the Option shall vest and become exercisable on
October 8, 2011. Xxxxx shall have no shareholder rights in the Shares
before exercises this option. If Xxxxx’x employment is by the Company
for reasons other than reasons constituting Just Cause, the Option shall
immediately vest. If Xxxxx’x employment is terminated for death or
Disability, a pro-rata portion of the Options, reflecting the period of service,
shall immediately vest.
(b) Termination of
Employment. If Xxxxx’x Employment with the Company and its
Affiliates is terminated by him for any reason for any reason other than those
described in Section 3(a), including, without limitation, voluntary termination
by Xxxxx or termination by the Company or its affiliates for Just Cause, the
Option, to the extent not then vested and exercisable, shall be immediately
canceled by the Company without consideration.
4. Exercise of
Options.
(a) Method of
Exercise.
(i)
Subject to Section 3 of this Agreement, the vested portion of the
Option may be exercised by delivering to the Company at its principal office
written notice of intent to so exercise; provided that the
Option may be exercised with respect to whole Shares only. Such
notice shall specify the number of Shares for which the Option is being
exercised and shall be accompanied by payment in full of the aggregate Option
Price. Payment of the aggregate Option Price may be made (A) in cash,
or its equivalent, (B) to the extent permitted by the Committee, by transferring
Shares having a Fair Market Value equal to the aggregate Option Price for the
Shares being purchased to the Company and satisfying such other requirements as
may be imposed by the Committee; provided that such
Shares have been held by Xxxxx for no less than six months (or such other period
as established from time to time by the Committee or generally accepted
accounting principles), (C) if there is a public market for the Shares at such
time, subject to such rules as may be established by the Committee, through
delivery of irrevocable instructions to a broker to sell the Shares otherwise
deliverable upon the exercise of the Option and to deliver promptly to the
Company an amount equal to the aggregate Option Price for the shares being
purchased or (D) such other method as approved by the Committee. No
Participant shall have any rights to dividends or other rights of a stockholder
with respect to the Shares subject to the Option until Xxxxx has given written
notice of exercise of the Option, paid in full for such Shares and, if
applicable, has satisfied any other conditions imposed by the Committee pursuant
to the Plan.
(ii)
Notwithstanding any other provision of the Plan or this
Agreement to the contrary, absent an available exemption to registration or
qualification, the Option may not be exercised prior to the completion of any
registration or qualification of the Option or the Shares under applicable state
and federal securities or other laws, or under any ruling or regulation of any
governmental body or national securities exchange that the Committee shall in
its sole reasonable discretion determine to be necessary or
advisable.
(iii) Upon
the Company’s determination that an Option has been validly exercised as to any
of the Shares, the Company shall issue certificates in Xxxxx’x name for such
Shares. However, the Company shall not be liable to Xxxxx for damages
relating to any delays in issuing the certificates to Xxxxx, any loss by Xxxxx
of the certificates, or any mistakes or errors in the issuance of the
certificates or in the certificates themselves.
(iv) In
the event of Xxxxx’x death, the vested portion of the Option shall remain vested
and exercisable by Xxxxx’x executor or administrator, or the person or persons
to whom Xxxxx’x rights under this Agreement shall pass by will or by the laws of
descent and distribution as the case may be, to the extent set forth in Section
4(a) of this Agreement. Any heir or legatee of Xxxxx shall take
rights herein granted subject to the terms and conditions hereof.
5. No Right to Continued
Employment. Neither the Plan nor this Agreement shall be
construed as giving Xxxxx the right to be retained in the employ of, or in any
consulting relationship to, the Company or any Affiliate. Further,
the Company or its Affiliate may at any time dismiss Xxxxx or discontinue any
consulting relationship, free from any liability or any claim under the Plan or
this Agreement, except as otherwise expressly provided herein.
6. Legend on
Certificates. The certificates representing the Shares
purchased by exercise of the Option shall be subject to such stop transfer
orders and other restrictions as the Committee may deem reasonably advisable
under the Plan or the rules, regulations, and other requirements of the
Securities and Exchange Commission, any stock exchange upon which such Shares
are listed, any applicable federal or state laws and the Company’s Certificate
of Incorporation and Bylaws, and the Committee may cause a legend or legends to
be put on any such certificates to make appropriate reference to such
restrictions.
7. Transferability. Unless
otherwise determined by the Committee, the Option may not be assigned,
alienated, pledged, attached, sold or otherwise transferred or encumbered by
Xxxxx otherwise than by will or by the laws of descent and distribution, and any
such purported assignment, alienation, pledge, attachment, sale, transfer or
encumbrance shall be void and unenforceable against the Company or any
Affiliate; provided that the
designation of a beneficiary shall not constitute an assignment, alienation,
pledge, attachment, sale, transfer or encumbrance. During Xxxxx’x
lifetime, the Option is exercisable only by Xxxxx.
8. Withholding. Xxxxx
may be required to pay to the Company or its Affiliate and the Company or its
Affiliate shall have the right and is hereby authorized to withhold from any
payment due or transfer made under the Option or under the Plan or from any
compensation or other amount owing to a Participant the amount (in cash, Shares,
other securities, other Awards or other property) of any applicable withholding
taxes in respect of the Option, its exercise, or any payment or transfer under
the Option or under the Plan and to take such action as may be necessary in the
option of the Company to satisfy all obligations for the payment of such
taxes.
9. Securities
Laws. Upon the acquisition of any Shares pursuant to the
exercise of the Option, Xxxxx will make or enter into such written
representations, warranties and agreements as the Committee may reasonably
request in order to comply with applicable securities laws or with this
Agreement.
10. Notices. Any notice
under this Agreement shall be addressed to the Company in care of its Chief
Financial Officer and a copy to the Chief Executive Officer, each copy addressed
to the principal executive office of the Company and to Xxxxx at the address
appearing in the personnel records of the Company for Xxxxx or to either party
at such other address as either party hereto may hereafter designate in writing
to the other. Any such notice shall be deemed effective upon receipt
thereof by the addressee.
11. Governing Law. This
Agreement shall be governed by and construed in accordance with the laws of the
State of New York without regard to conflicts of laws.
12. Signature in
Counterparts. This Agreement may be signed in counterparts,
each of which shall be an original, with the same effect as if the signatures
thereto and hereto were upon the same instrument.
IN
WITNESS WHEREOF, this Agreement has been executed and delivered by the parties
hereto.
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Nalco
Holding Company
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By
__________________________
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Its
______________________
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_______________________________
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Xxxx
X. Xxxxx
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